Sunil Dudi vs State Of Rajasthan

Rajendra Prakash Soni, J

The petitioner lugged and locked in F.I.R. No.133/2021 under Section(s) 8/15 and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short 'the Act') registered by Police Station Shahpura, District Bhilwara, filed this second application for restoration of his liberty under section 439 of the Code of Criminal Procedure, 1973. The first bail application was disposed of without considering the merits of the case since it was not pressed by the petitioner.

Shorn of details, the facts leading to this bail application are that petitioner Sunil Dudi was arrested on 19.04.2021 in connection with FIR number 72/2021 registered at police station Kotdi, District Bhilwara. He was interrogated in that matter. During the course of which, on 23.04.2021 he suffered a disclosure statement that on 10.04.2021, he along with other accused was carrying Poppy Straw in two vehicles. On the way, when there was a clash and firing with the police force in Kotdi police station area, they ran away from there and the Poppy Straw was emptied and hidden in an cote of Raju Kharol. On the basis of said information, petitioner along with other co-accused was taken to the spot. After following the due procedure, 776 kg of Poppy Straw was recovered from cote of Raju Kharol which was hidden under the fodder. After investigation, charge-sheet has already been filed against the petitioner besides 12 other accused.

To begin at the beginning Shri Vikas Balia, learned senior counsel for the petitioner has inter alia contended that the petitioner is innocent and has been falsely implicated in the case only on the basis of disclosure statement. He argued that petitioner was interrogated in F.I.R. number 72/2021 of police station Kotdi, during the course of which, he allegedly gave information under section 27 of the Indian Evidence Act. Recovery of contraband has been made on the basis of said information only.

It has been further contended that the factum of his false implication is further fortified from the fact that admittedly, nothing has been recovered from possession of the petitioner; that aforementioned narcotic contraband was recovered from cote of co accused Raju Kharol and the petitioner has no relation with the ownership and possession of that cote. The prosecution has embrangled the petitioner in the present case on the ground that the petitioner had allegedly concealed the contraband there.

He has further submitted that information given under section 27 of the Indian Evidence Act is not capable of being used as substantive evidence to convict an accused; that while in custody in another case and during his interrogation, why any accused would voluntarily give information about the commission of one more crime by him. An accused person cannot be compelled to be a witness against himself simply because he gave some information while in police custody, without anything more; that the mere fact of being in police custody at the time when the information in question was given would by itself, lend to the inference that the accused was compelled to make the statement. According to him, if the seizure of contraband from cote of Raju Kharol had already taken place earlier, and thereafter Raju Kharol had informed that the petitioner had brought and kept the contraband there, things could have been different.

It is further contended that although the petitioner was brought to the spot from Police Station Kotdi prior to the seizure, in spite of that he was not given notice under Section 50 of the Act prior to the alleged search and seizure thus, there was no compliance of Section 50 of the Act at all. He stressed the various provisions of the NDPS Act to argue that it was extremely stringent, in that it had minimum sentences for even possession of what is regarded as a "commercial quantity" of a drug or psychotropic substance, being a minimum sentence of rigorous imprisonment of 10 years, going up to 20 years. This, coupled with various presumptions raised against the accused, and stringent bail conditions, all made the NDPS Act a very stringent measure of legislation, which, the more stringent it is, must contain necessary safeguards against arbitrary search, seizure and arrest, or else it would fall foul of the fundamental rights chapter of the Constitution.

Referring to the case of Rabi Prakash Vs. State of Odisha in SLP (criminal) No.4169/2023 decided by Hon’ble the Supreme Court on 13.07.2023, it is argued that conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.

As regards the other cases which are stated to be pending against the petitioner, the learned counsel for the petitioner has submitted that even in the said cases he has been falsely implicated. He contends that the investigation qua the petitioner is complete; he is in custody since 07.05.2021 and not a single witness has been examined after commencement of the trial therefore, considering the facts and circumstances the petitioner may be released on bail.

From the other side, learned Public Prosecutor for the State has strongly objected the submissions made by learned senior counsel for the applicant and submitted that the grounds of argument contended by the counsel for the petitioner are factual issues which cannot be addressed at this stage and ought to be determined only after trial; that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by him, he do not deserve any leniency, rather he need to be dealt with severely; that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner was indulged in the illegal trade of narcotics. Contraband of commercial quantity has been seized from the cote of co accused Raju Kharol which was kept there by the petitioner; that release of accused will hamper the trial; that the restrictions of Section 37 of the N.D.P.S. act clearly operate against the petitioner; that petitioner has been charged for the offences punishable by severe punishment. Therefore, he does not deserve to be released on bail.

I have appreciated the submissions advanced by the learned defence counsel, learned Public Prosecutor and have carefully perused the material available on record.

Bail or Jail is a point prone to produce perplexity at times in Bail-Court and obfuscation becomes more operative when it is a case under Narcotic Drugs and Psychotropic Substances Act, providing additional limitations under Section 37 of the Act. It is well settled that the jurisdiction of a Court to grant bail for offences under NDPS Act and bail in cases of recovery of commercial quantity is circumscribed by the provision of Section 37 of the Act. The bail can be granted only when there are reasonable grounds for believing that the accused is prima facie not guilty of the offence and he is not likely to commit any offence when released on bail.

I am aware of the fetters imposed by said provision of the Act but at the outset, it is admitted that contraband was recovered from cote of co accused Raju Kharol and the petitioner has nothing to do with the ownership and possession of that cote. It is also not disputed that only evidence against petitioner is in the shape of information allegedly given by him under section 27 of the Indian Evidence Act, the admissibility and veracity of which would be tested during the course of trial. Other arguments raised by learned counsel for the petitioner also holds water.

In the circumstances, the arguments of the State in oppugnation is surely svelte and consequently further detention is held to be subvertible. The petitioner is in custody since 07.05.2021; investigation is complete, besides Challan has been presented.

So viewed, I do not intent to go into the merits of the matter and say no more, except that the conditions of Section 37 of the Act should be taken to be satisfied for the purpose of anesthetizing the incarceration, forasmuch this court feels that the accused has available to him, substantial grounds so as to question the prosecution case and ordering restoration of liberty to the accused on bail.

Ex Consequenti, as stated above, without commenting any opinion on the merits of the case and having regard to the entirety of the facts and circumstances of the case no useful purpose will be served by keeping the petitioner in further incarceration there-fore, I am inclined to grant indulgence of bail to the petitioner.

Keeping in view the totality of the facts and circumstances of the case, present second bail application is allowed and the petitioner- Sunil Dudi S/o Opa Ram Vishnoi is ordered to be released on bail subject to his furnishing bail/surety bonds of sufficient amount to the satisfaction of trial court in connection with the F.I.R. No.133/2021 of Police Station Shahpura, District Bhilwara with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future.